Factual and Procedural Background
The Appellant, formerly a professional dancer, became severely disabled following a stroke in 1999 and a series of subsequent falls. She requires assistance to urinate two or three times each night. Until late 2008 the Respondent Council funded a night-time carer who helped her reach a commode. In November 2008 the Respondent Council decided to meet her night-time needs by supplying incontinence pads and absorbent sheets (“pads”), asserting that this would enhance safety, privacy, independence and save roughly £22,000 per annum.
The Appellant sought judicial review of that decision on 22 December 2008. A Deputy High Court Judge refused permission at a “rolled-up” hearing in March 2009. Permission was later granted by the Court of Appeal, which heard the substantive appeal in April 2010 and, in October 2010, dismissed the claim save for finding a historic breach before later care-plan reviews. The Appellant appealed to the Supreme Court, which delivered the instant judgment.
Legal Issues Presented
- Whether the 2009 and 2010 Care Plan Reviews amounted to a lawful reassessment of the Appellant’s community-care needs.
- Whether replacing night-time carers with pads infringed the Appellant’s rights under Article 8 of the European Convention on Human Rights, and, if so, whether that interference was justified and proportionate.
- Whether the Respondent Council operated a “policy or practice” contrary to section 21E of the Disability Discrimination Act 1995 and, if so, whether it was justified as a proportionate means of achieving a legitimate aim.
- Whether the Respondent Council failed to discharge its general disability-equality duty under section 49A of the Disability Discrimination Act 1995.
Arguments of the Parties
Appellant's Arguments
- The Needs Assessment of July 2008 fixed her recognised need as “assistance to use the commode at night”; the later Care Plan Reviews did not lawfully reassess that need and therefore could not lawfully withdraw night-time care.
- Compelling her to wear pads when she is not incontinent is a grave affront to dignity, engages Article 8, and is neither necessary nor proportionate.
- The Respondent Council’s decision reflects an unlawful policy or practice that discriminates under section 21E of the Disability Discrimination Act 1995.
- The Council failed to show “due regard” to the equality objectives in section 49A of the same Act.
Respondent Council's Arguments
- The 2009 and 2010 Care Plan Reviews lawfully reassessed the need more broadly as “night-time toileting needs,” which can safely be met by pads.
- Pads reduce the risk of falls, enhance privacy and independence, and represent a reasonable allocation of limited resources; Article 8 is therefore either not engaged or any interference is justified.
- No relevant “policy or practice” exists; in any event the measure is a proportionate means of achieving the legitimate aim of equitable resource distribution.
- The Council fully consulted the Appellant and her partner and complied in substance with its equality duties.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Gloucestershire CC ex p Barry [1997] AC 584 |
Local authorities may take resources into account when assessing and meeting needs. |
Confirmed that resource considerations are legitimate when choosing how to meet the Appellant’s needs. |
| Botta v Italy (1998) 26 EHRR 241 |
Article 8 requires a “direct and immediate link” between the measure sought and private life. |
Used to test whether the Appellant’s claim engaged Article 8; Court found the high threshold not met. |
| Sentges v The Netherlands (2003) 7 CCLR 400 |
States enjoy a wide margin of appreciation in allocating limited resources. |
Supported finding that any Article 8 interference was justified. |
| Pentiacova v Moldova (App No 14462/03) |
Reinforces wide margin of appreciation on resource allocation. |
Cited as analogous authority for dismissing Article 8 claim. |
| Molka v Poland (App No 56550/00) |
Resource-based decisions rarely violate Article 8. |
Illustrated the high threshold for Article 8 positive-obligation claims. |
| R (Bernard) v Enfield LBC [2002] EWHC 2282 |
Example where Article 8 obligations were breached owing to extreme conditions. |
Distinguished; Court found Appellant’s circumstances far less severe. |
| Anufrijeva v Southwark LBC [2004] QB 1124 |
Positive welfare obligations under Article 8 arise only in exceptional cases. |
Relied on to conclude that Article 8 was not violated here. |
| R (Baker) v Secretary of State [2008] EWCA Civ 141 |
“Due regard” under disability-equality duty assessed on substance not form. |
Supported rejection of the section 49A argument. |
Court's Reasoning and Analysis
Issue 1 – Reassessment: The Supreme Court majority accepted Judge Rix’s view that the 2009 and 2010 Care Plan Reviews “are to be read as including a reassessment.” Under guidance issued pursuant to the National Health Service and Community Care Act 1990, a care-plan review may incorporate a needs reassessment. The Reviews focused on eliminating fall-risk, maximising privacy and independence, and proposed pads as “a practical and appropriate solution.” Extensive consultation with the Appellant and her partner satisfied statutory directions requiring user engagement.
Issue 2 – Article 8: Even assuming Article 8 was engaged, Strasbourg case-law grants a wide margin of appreciation where competing resource demands exist. Comparators such as Sentges and Pentiacova were deemed more serious yet inadmissible. The Council’s decision was proportionate, enhanced safety, saved public funds and respected dignity as far as possible.
Issue 3 – Disability Discrimination Act 1995, section 21E: The majority found no evidence of a “practice, policy or procedure” within the meaning of section 21E. Alternatively, the measure was a proportionate means of achieving the legitimate aim of equitable resource allocation.
Issue 4 – Disability Equality Duty, section 49A: Failure to reference the duty expressly did not prove non-compliance. Given the Respondent Council’s focus on a disabled service-user and active consultation, the duty was substantively fulfilled.
A dissenting opinion (Judge Hale) characterised the decision as irrational, distinguishing between needs (assistance to reach a toilet) and methods (pads), but the majority rejected that analysis.
Holding and Implications
APPEAL DISMISSED.
The Supreme Court upheld the Respondent Council’s authority to reassess needs during care-plan reviews and to meet night-time toileting needs with pads rather than a carer. The decision confirms:
- Local authorities may lawfully reconsider and redefine assessed needs, provided statutory consultation occurs.
- Resource considerations remain central when selecting how to meet community-care needs.
- Article 8 positive-obligation claims will rarely succeed where less intrusive, cost-effective measures address safety and dignity.
No new precedent was created, but the judgment clarifies the breadth of local-authority discretion in balancing individual preferences against finite social-care resources.